In what is one of the most unlikely and significant victories in environmental and human rights history, 30,000 indigenous people and campesinos won a $9.5 billion judgment in a class action suit after 20 years of ugly legal battles (now upheld by Ecuador's highest court).
Unlikely because of the unprecedented and overwhelming pressure placed
on the plaintiffs, their supporters, Ecuador and the Ecuadorian judicial
system. And significant as it sets an encouraging precedent that those
victimized by powerful corporate forces have hope for justice and a way
to fight back.

So how on Earth could this victory be so ridiculously, unethically
and illegally turned on its head and evolve into the shocking display
that just played out in a US Federal Court? And what repercussions and
worrisome precedents could such reckless actions hold for corporate
accountability and legal processes around the world?

I just spent most of the last two weeks in that
New York City courtroom, where U.S. lawyer Steven Donziger and the
Ecuadorian Lago Agrio plaintiffs found themselves accused of extortion
and racketeering by the 3rd largest corporation in America. Chevron's sham trial
will wrap up today, but thanks to Kaplan's inexplicable decision not to
allow any testimony related to Chevron's contamination of the
Ecuadorian Amazon – the actual issue here and disaster from which all
this started – there's a lot that will never be discussed in the
courtroom.

Unfortunately, there's even more going on here than a
Chevron-friendly judge misusing his power to the detriment of 30,000
long-suffering people in Ecuador. This is the furthering of a strategy
that corporations will continue to develop to crush the free speech of critics
and limit our chances to fight back on anything resembling a level
playing field. This RICO suit and everything Kaplan has allowed Chevron
to get away with in its wake is a serious threat to open society and due
process of law.

In 2010, before the Lago Agrio court had even issued a judgment
(which Chevron now claims was "ghost written" by the legal team for the
Ecuadorians), U.S. Federal Judge Lewis Kaplan had already made up his
mind about the case. By issuing a worldwide injunction (later overturned
by the 2nd Circuit Court of Appeals) Kaplan began a twisted journey through the looking glass and dragged the United States with him. Based on Chevron's trumped-up charges pieced together from edited Crude outtakes
and thousands of emails between an international team constantly
battling Chevron pressure tactics, Kaplan decided that a fraud had taken
place and encouraged Chevron to file a RICO suit.

Kaplan has never been to Ecuador, knows nothing about its legal
system and didn't even consider key evidence or hold a hearing to
determine the facts. He doesn't even speak Spanish. His order,
according to Professor Burt Neuborne, an extremely well-regarded human
rights and civil liberties lawyer who is also the Legal Director of the
Brennan Center for Justice at NYU Law School, "[sent] an unmistakable
message of American judicial arrogance to the rest of the world that can
only result in increased levels of reciprocal judicial suspicion and
hostility, with negative consequences for the transnational rule of
law."

There will more than a few law journal articles about what Kaplan has
done here (much of which is in direct contrast to some of his prior
rulings). But here are just a few highlights of the violations of civil
rights and perversion of legal power Kaplan allowed or encouraged:

Forced independent filmmaker Joe Berlinger to turn over more than 600 hours of outtakes despite
protest from Leonardo DiCaprio, Woody Allen, Bill Moyers, Robert
Redford, Mikhail Gorbachev, Michael Moore, the Academy of Motion Picture
Arts and Sciences, and many others;

Even with Kaplan clearly on their side, Chevron does still have to do
some of the work. There's a significant difference in the law between
extortion by force and extortion by pressure. One allows a meritorious
claim as a defense and the other doesn't. Yet, if the trial record does
not allow for evidence of the reasons Donziger and the LAPs initially
filed their suit – the toxic contamination – how can anyone make a
judgment on whether their claims against Chevron have merit? Chevron has
to affirmatively prove that the LAPs have no right to recovery, yet
they never submitted any evidence related to the actual contamination.

If you cut through the theatrics that have little or nothing at all
to do with the claims, Chevron is left with absolutely nothing more than
a triple hearsay statement from an admitted liar and corrupt judge,
who was paid more than $300,000 by Chevron for his testimony. There's
not a single piece of evidence to prove in even the slightest that Judge
Zambrano did not write the verdict. Everything Chevron has introduced
has been done so to suggest that something nefarious happened
without actually proving the claims. Mix that with Kaplan's attitude
towards Donziger and all things Ecuador and you have a show trial and
nothing more.

Even Kaplan himself appeared frustrated that Chevron's lawyers have
not made his task easy by giving him a solid case to base his judgement
upon. That is why they dropped the damages claim to ensure no jury would
ever hear their case – they'd never swallow it. Nevertheless, most are
confident Kaplan will complete the task he set out before the Lago Agrio
judgment was even issued – he will hand Chevron a ruling they can tout
to anyone who will listen.

It's no matter that it will not be based on the facts. No matter that
it will not contain any evidence of actual extortion or illegal acts.
No matter that it will be used expressly to violate the order of the 2nd
Circuit Court of Appeals when they directed Kaplan not to act as an enforcement court.

Truth is stranger than fiction. These events would seem too
outlandish to be true had I not witnessed them with my own eyes. And
that is exactly what Chevron is hoping for. They will use Kaplan's
verdict for years to come (though the verdict itself will inevitably be
faced with legal problems
that will likely cause it to fall apart quickly under appeal), and
possibly spend billions more hoping empty words based on lies and
manufactured "facts" will drown out the voices of the tens of thousands
who continue to live with the harsh reality of Chevron's despicable acts
in the Amazon.

Monday, November 25, 2013

Today, representatives of lawyer Steven Donziger and the Ecuadorean communities ravaged by Chevron contamination issued a press release highlighting the significant passages of Donziger's testimony struck from the record by Judge Lewis Kaplan. From the release:

Judge Lewis A. Kaplan, overseeing Chevron’s RICO trial against Ecuadorian villagers and their lawyers, is suppressing critical witness testimony about Chevron’s extensive contamination of Ecuador’s rainforest that clearly demonstrates a $9.5 billion environmental judgment against the company is valid, a spokesman for the villagers said Monday.

“Judge Kaplan is again demonstrating his deep-seated animus toward the Ecuadorian communities victimized by Chevron’s pollution,” said Han Shan, the U.S.-based spokesman for thousands of Ecuadorian villagers who in 2011 won a judgment against Chevron after an Ecuador court found the company dumped billions of gallons of toxic waste onto the lands and waterways of the Amazon.

Kaplan’s latest move in the RICO case, which is expected to end tomorrow, was to strike substantial portions of the written witness testimony of Steven Donziger, the New York lawyer who has represented the Ecuadorian villagers since 1993. Donziger, the main defendant in the case, has disputed all of Chevron’s allegations and has characterized the RICO lawsuit as a form of retaliation against those who held the company accountable for toxic dumping. Ecuador’s Supreme Court unanimously affirmed the judgment against Chevron earlier this month.

Forbidden by Judge Lewis Kaplan from providing direct testimony on the stand about his two-decade-long involvement in efforts to hold
Chevron accountable for its human rights and environmental abuses in
Ecuador, Steven instead was ordered to submit a written declaration as his direct testimony. After submitting his statement, last Monday—November 18th—Steven Donziger finally took the stand.

The lead lawyer for Chevron in the trial, Gibson Dunn's Randy Mastro, announced that he expected to spend more than a full day cross-examining Steven. Instead, after halting, confused questioning of Donziger during which the perfectly poised witness answered questions in an easygoing, explanatory fashion, Mastro huddled with furrow-browed Chevron company lawyers at a brief break. After the recess, Mastro, looking rattled, announced in open court that he had only a few more questions. He soon beat a hasty retreat before the lunch break, lest he offer Donziger further opportunity to deconstruct Chevron's cynical and deceptive narrative. All in all, the day was a huge victory for Donziger.

Donziger's witness statement was submitted to the court but Chevron predictably filed a motion to strike most of it, in an effort to suppress evidence of the company's environmental crimes and fraudulent cover-up in Ecuador.

Judge Kaplan granted many of Chevron's motions and struck numerous significant passages in the testimony. Judge Kaplan didn't grant all of Chevron's requests, which would have reduced the powerful testimony to a handful of disconnected floating paragraphs.

The Ecuador judgment is “valid” based on overwhelming scientific
evidence that Chevron “deliberately discharged billions of gallons of
toxic waste into Ecuador’s rainforest” resulting in “grave harm and even
death to thousands of innocent people.” (Paragraph # 7)

As late as April of 2012, a high-level Chevron executive approached
representatives of the rainforest communities to initiate settlement
discussions. The contacts did not continue after the villagers filed
legal enforcement actions to seize billions of dollars of Chevron assets
in Canada and Brazil. (Paragraph #19)

An environmental consultancy in the U.S., the Louis Berger Group
(LBG), has independently reviewed the evidence before the Ecuador court
and concluded there is ample support for the findings of liability and
damages against Chevron. It also concluded Chevron’s own evidence
before the Ecuador court supports a finding of liability against the
company. LBG’s report, commissioned by the government of Ecuador, has
been turned over to an arbitration panel hearing a related dispute over
the pollution. Donziger is submitting it as evidence in the RICO trial
to help prove the judgment was not obtained by fraud. (Paragraphs #48,
59)

Donziger said the preparation of the expert report of Dr. Richard
Cabera was “fundamentally consistent with Ecuador law, custom, and
practice as it was occurring” in the case against Chevron. While
Chevron tries to focus attention on the report, Donziger said it is
irrelevant given that the Ecuador court excluded it. He also said there
was some confusion surrounding the preparation of the report but that
the science underlying it remains valid and that excluding it as
evidence amounted to a “draconian” sanction against the rainforest
communities. It is Donziger’s most detailed comment yet on that issue.
(Paragraphs #91 through 106)

Donziger also described how Chevron’s own lawyers publicly called
many of the oil company’s own court-appointed experts “independent” even
though they paid 100% of their fees and worked closely with them, just
as lawyers for the plaintiffs did when referring to Dr. Cabrera.
Chevron has claimed Donziger was trying to mislead the public when he
called Cabrera “independent” but Donziger says the term, based on what
he knows today, is accurate and was widely used by both parties in the case to describe their own experts. (Paragraphs #79 through 90)

Donziger suggested that lawyers on the plaintiff’s team made some
minor errors typical in a contentious and long-running litigation, but
that those errors paled in comparison to the deeply corrupt acts engaged
in by Chevron to sabotage the trial. Whatever errors were committed
did not come close to amounting to fraud, as has been confirmed by Ecuador’s courts.
Although Judge Kaplan has tried to exclude evidence of
Chevron’s corruption, Donziger is trying to bring it in as evidence of
his state of mind.

Donziger again made it clear – as he did in a sworn declaration
submitted to Kaplan’s court last March – that he did not bribe a judge
in Ecuador and that Chevron’s star witness who so alleges, Alberto
Guerra, is corrupt and a liar. Donziger said Guerra’s testimony is a
“massive lie” at the core of Chevron’s case. A motion to strike
Guerra’s testimony is pending before the court.

Donziger's declaration is a profoundly important summary of the two-decade effort of the rainforest communities to hold Chevron accountable. After reading the powerful testimony, and comparing the grey parts—sections Chevron asked to be stricken—and yellow highlighted passages—sections Judge Kaplan struck from the record—one can be forgiven for thinking that censorship is alive and well in America.

It is, and it's being carried out under the guise of a judicial process that Chevron is using to conceal its crimes in Ecuador and retaliate against those that have helped bring them to light.

Editor of the Earth Island Journal Jason Mark wrote a story that first appeared in the magazine, and has now been syndicated by Salon. In the article, Mark goes beyond the basic reporting on the back-and-forth of the Chevron v. Donziger trial to explore the broader implications of the oil giant's retaliatory efforts.

First he quotes Donziger's former counsel:

John Keker, a
defense attorney who represented Donziger until the besieged lawyer
could no longer pay his bills, describes Chevron’s efforts as
“scorched-earth litigation.” Here’s how Keker explained Chevron’s legal
tactics when he filed a motion to be dismissed from the case:

“Chevron
is using its limitless resources to crush defendants and win this case
through might rather than merit. There is no sign that Chevron wants a
trial on the merits. Instead, it will continue its endless drumbeat of
motions — for summary judgment, for attachment, to re-instate
long-dismissed claims, for penetration of attorney client privilege, for
contempt and case-ending sanctions, to compel discover already denied
or deemed moot, etc., etc. — to have the case resolved in its favor
without a trial. … Encouraged by this Court’s implacable hostility to
Donziger, Chevron will file any motion, however meritless, in the hope
the Court will use it to hurt Donziger. Dongizer does not have the
resources to defend against Chevron’s motion strategy.”

Mark then turns to some legal scholars for their view on this unprecedented and extraordinary case:

Susan Bozorgi, a Miami-based criminal defense lawyer, told Newsweek that
she worries about what it will mean if Chevron wins: “[RICO] was meant
to be used against the mob. The danger about a case like this is that it
could send a message to a lawyer who wants to take up a cause for an
underdog that Big Brother, the big corporate entity, is going to start
coming after you for criminal conduct.”

UC-Hastings law professor
Roht-Arriaza said to me: “I’m not a RICO expert, but I don’t know of any
case that involves the behavior of companies abroad, where the company
has turned around and sued under RICO. Chevron has been sued before, but
they haven’t done this, even when it looked like things weren’t going
well for them.” She continued: “It’s interesting the number of levels on
which Chevron is fighting back. They are not only doing this, they are
also bringing all of these arbitration cases, basically trying to say
that the Ecuadorian court shouldn’t have brought any judgment.”

Mark quotes a spokesperson from Chevron who says that Donziger and the Ecuadorean villagers whose rainforest lands have been ravaged by the company's pollution are merely "scapegoating" the oil giant. The article concludes:

Of course, scapegoating is in the eye of the beholder. For his part,
Donziger feels he’s the one being hounded. “They are trying to destroy
my life,” he told me. “It’s improper, it’s illegal, and it’s unethical.
They have hired people to follow me. They sued me for $60 billion, and
then they dropped that down to $100 million, and then they dropped that
because they are scared of having a jury trial. And now they are using a
US federal judge, who I think is biased in their favor, and who is
denying my due process rights.”

Then Donziger said, “There is an
intimidation factor. The entire idea behind the entire RICO case is not
to fight wrongdoers. It’s a weapon to intimidate their critics.”

If
he’s right — and Chevron has spent all of this money just to
intimidate people and prevent future litigation — then it leads us to a
sobering conclusion: Even if the judge rules in Donziger’s favor,
Chevron still wins.